[Open letter] Pre-trial detention in the EU

As the European Commission, Council and Parliament have recognised, ‘excessively long periods of pre-trial detention are detrimental to the individual, can prejudice cooperation between the Member States, and do not represent the values for which the European Union stands’. We are writing to you now to follow-up on the European Union’s work to tackle this problem and to urge the Commission to continue its work in this area beyond the current legislative programme, including developing a timeframe for tabling a legislative proposal setting common minimum standards for the use of pre-trial detention in the EU.

We understand that the European Commission is at this stage intending to focus on monitoring the implementation of three Framework Decisions: the European Supervision Order (ESO); the Prisoner Transfer Framework Decision; and the Framework Decision on the application of mutual recognition to judgments and probation decisions and is not currently proposing legislation.
We take note of this emphasis on effective implementation but would highlight that only one of the three Framework Decisions, the ESO, has the potential to impact on pre-trial detention.
While it may go some way to alleviating problems faced by non-nationals by enabling them to return home while awaiting trial, even this is very limited in scope. In addition, the three Framework Decisions are all pre-Lisbon measures and the European Commission therefore currently has no enforcement powers if problems with their implementation are identified.

Pre-trial detention can be validly imposed where necessary to ensure that justice is served, evidence and witnesses are protected and suspects do not escape prosecution. However, the reality is that standards in pre-trial detention regimes vary widely across the EU and frequently fall short of human rights and other international standards. We therefore welcomed the Commission’s Green Paper and engaged actively in the Commission’s consultation.

The Commission’s consultation attracted widespread recognition of problems with pre-trial detention in Europe, its impact on the effective operation of mutual recognition measures and considerable support for EU intervention to tackle the problem (a summary of these uncontroversial conclusions and recommendations is enclosed).
In particular:

In December 2011, Members of the European Parliament overwhelmingly supported a resolution on detention in the European Union, which called for a legislative proposal on the rights of persons deprived of their liberty to ensure pre-trial detention remains an exceptional measure, used in compliance with the presumption of innocence and the right to liberty;

Over fifty non-governmental organisations responded to the consultation and overwhelmingly agreed that new EU laws would help to address the problems with pre-trial detention in Europe; and

Six Member States stated that legislative action is required. Several other Member States accepted that the current system of pre-trial detention poses a threat to mutual trust and continued judicial cooperation across EU borders.

There is much more that needs to be done to: (1) reduce the excessive periods of time that people arrested and accused of criminal offences spend in pre-trial detention before they have been convicted of any crime, and (2) to increase the use of alternatives. This is particularly important in relation to children and other vulnerable suspects, who can suffer serious long term effects from even a short time in pre-trial detention. We also believe that more systematic information gathering will be crucial in order to understand how pre-trial detention is being used in practice across the EU. This will provide a strengthened basis for future decisions on the effect that the Commission’s work on detention is having and on what further steps (legislative or non-legislative) are needed to protect fundamental rights and prevent unjustified and excessive pre-trial detention from undermining mutual trust and cooperation.

We therefore urge the Commission to:

use its powers to introduce a proposal to include the development, production and dissemination of statistics on pre-trial detention in the European statistical programme to assess the use of alternatives to, and length of, pre-trial detention in Member States and the numbers of cases in which non-nationals are permitted to return home pending trial. We would, of course, be delighted to assist with the development of such a proposal; and

commit to take further EU action to establish minimum and enforceable EU standards on pre-trial detention under the next Commission work programme and to review the need for a legislative proposal on common minimum standards on the use of pre-trial detention if, as we expect, the implementation work and statistical information collected shows this to be necessary.